DC Issues Draft Regulations for Medical Marijuana

August 11, 2010

The District of Columbia will join 14 states that have medical marijuana programs, but it won't happen until next year under a plan announced last Friday by Mayor Adrian Fenty (D). That and other restrictive provisions of the mayor's order and the city's draft administrative rules have advocates greeting the news with mixed feelings.
It's been a long time coming. Voters in the District approved a medical marijuana initiative with 69% of the vote a dozen years ago, but the city was blocked from enacting the will of the voters by the Barr Amendment, named after former Rep. Bob Barr (R-GA), which forbade the use of city funds to implement it. That rider to the District appropriations bill was removed by the Democratically-controlled Congress last year.

The council approved an amended initiative in May, but then the city had to wait 30 congressional working days to give Congress the opportunity to change its mind, which it didn't do. Now, the mayor has unveiled the draft rules, but the city will not start taking applications for dispensary and cultivation permits until January 1.

"It was 1998 when District residents overwhelmingly approved Initiative 59, and the District Council has been considering this legislation since February, so there's no reason for the mayor's office to be dragging its feet," said Dan Riffle, a legislative analyst with the Marijuana Policy Project. "Patients in the District who could benefit from medical marijuana have already had to wait 12 years for this law. Why should they be needlessly forced to wait another five months?"

Under the proposed rules, up to five dispensaries could operate and would pay $10,000 a year for the privilege. Similarly, up to 10 cultivation centers growing up to 95 plants at a time could operate and would pay $5,000 per year. Officers for those operations would additionally pay a $200 annual registration fee, managers would pay $150, and employees $75.

Patients would have to purchase their medicine from the dispensaries because, unlike all other state medical marijuana programs except New Jersey's, there is no provision for patients to grow their own.

Patients and caregivers would pay $100 a year to register, but those earning less than twice the federal poverty level would pay only $25 and would be eligible for subsidized pot on a sliding scale. Dispensaries and cultivation operations would have to set aside 2% of their revenue to subsidize poor patients.

Doctors recommending medical marijuana must have a "bona fide physician-patient relationship with the qualifying patient" and must have completed a physical exam of the patients no more than 90 days before writing the recommendation. Doctors could not have an office at a dispensary and dispensaries could not market themselves to doctors.

Medical marijuana patients would be able to take their medicine only in their homes or at a medical facility -- if they reside there and the facility agrees.

Dispensaries would be barred from selling alcohol or conducting any other type of business on the premises, and owners of dispensaries or cultivation operations must be "of good character" and have no felony convictions and no drug-related misdemeanor convictions. Dispensaries are barred from locating within 300 feet of a school or recreation center, and are barred from residential areas as well. They must have an approved security plan and must install a video recording system.

City officials and council members pronounced themselves pleased. Medical marijuana advocates had more mixed feelings and are looking to get some changes made during a 45-day review period, which is now under way.

"We are excited to see the DC law move closer to implementation," said medical marijuana patient Steph Sherer, who is also executive director of the advocacy group Americans for Safe Access (ASA). "But the voices of patients have barely been heard in this process, and if the law is expected to succeed we will need a place at the table. Patient advocates are concerned about a number of provisions in the proposed regulations and have made a series of requests that have, unfortunately, fell on deaf ears."

First and foremost, patients are seeking greater involvement in the development and oversight of regulations. Specifically, patients are seeking appointment to the Medical Marijuana Advisory Committee once established by the District. But the regulations only require that those "who possess medical or scientific expertise" be appointed to the committee. "Without patient involvement, the law will fail to fully address the needs of the people for whom the law was intended to help," Sherer argued.

"The proposed regulations released today are detailed and comprehensive, but there are several issues that we hope are addressed before they are finalized," said MPP's Riffle. "For example, the draft regulations call for applications from prospective dispensary or cultivation center owners to be accepted on a first-come, first-serve basis, which could lead to the first applicants being awarded licenses, rather than the best applicants. Also, the lack of a competitive, scored application process -- such as those utilized in Maine and other medical marijuana jurisdictions -- raises questions of transparency and fairness. However, patients will benefit from the regulatory prohibition on the use of pesticides or contaminants, and the detailed packaging and labeling requirements for medical marijuana products."

Advocates also expressed concern about the District's decision to put regulation of licensing of production and distribution of medical marijuana in the hands of the DC Alcohol and Beverage Control Board instead of the Department of Health. The latter department will be in charge of implementing the program's ID card provisions.

"Medical marijuana is a public health issue and should be treated as such," said Caren Woodson, ASA's government affairs director. "Instead, the District intends to regulate medical marijuana like alcohol, a recreational drug. Patients needs are far different from the needs of those who use liquor stores or night clubs."

As far as advocates are concerned, the city's draft is just that -- a draft. Now, it's time to get it right. The clock is ticking.